People v. Cromwell
952 N.Y.2d 302
N.Y. App. Div.
2012
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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v CORY CROMWELL, Appellant.

[952 NYS2d 302]

Contrary to the defendant‘s contention, he was not deprived of the effective assistance of counsel due to his counsel‘s failure to argue that the lineup identifications should have been suppressed because the complainants were together before and after the lineup, so they “may” have spoken to one another. As the contention that the complainants may have spoken to one another is purely speculative and unsupported by the hearing record, the defendant has not met his burden of proving that he was deprived of the effective assistance of counsel (see generally

; see
;
;
). Similarly, the defendant was not deprived of the effective assistance of counsel by counsel‘s alleged failure to move to re-open the Wade hearing (see
). “‘A lawyer is not ineffective for failing to make a motion that is unlikely to succeed‘” (
, quoting
, affd
, cert denied
; see generally CPL 710.40 [4];
). Such is the case here.

Contrary to the defendant‘s contention, the Supreme Court providently exercised its discretion in denying his pretrial motion for severance and in granting the People‘s motion to consolidate (see CPL 200.20 [2] [c]; [3] [a]; [4];

;
;
).

The defendant‘s contention that he was deprived of a fair trial because the prosecutor made allegedly improper remarks during his summation is unpreserved for appellate review, as the defendant either did not object to the remarks or made only general objections (see CPL 470.05 [2];

;
; People v
;
). In any event, the challenged remarks either were responsive to arguments made by defense counsel, constituted fair comment on the evidence, or otherwise did not deprive the defendant of a fair trial (see
;
).

Dillon, J.P., Balkin, Austin and Cohen, JJ., concur.